Stephen Hume: On health and safety hazards, B.C. citizens betrayed by their provincial government

Privacy commissioner’s ruling suggests public agencies’ reluctance to inform public about risks is the rule, not the exception

Oliver resident Ian Gibson, a retired high school geology teacher, surveys the aftermath after the Testalinden dam broke in 2010, unleashing a torrent of debris that damaged homes and farmland. Spencer Whitney photo

The provincial government failed in its legal duty to warn downstream residents near Oliver about the public hazard from a deteriorating irrigation dam before its eventual collapse in 2010, British Columbia’s information and privacy commissioner Elizabeth Denham ruled Monday.

It’s an important ruling. It points to the reluctance of government custodians of information to share it with citizens who both pay for it and need it to make informed decisions.

Access to information about health, safety and environmental hazards should be the standard. We should not have to rely upon leaks to The Vancouver Sun from concerned public servants or pry it from authorities more worried about political optics than public welfare.

Although government inspectors first reported more than 35 years ago that the Testalinden Dam, built in the 1930s below Mount Kobau, had reached the end of its lifespan and represented “a hazard to life and property of some of the settled areas,” no warnings were issued.

The province argued to Denham that because the dam didn’t actually fail until 2010, earlier decisions not to inform the public had been vindicated. Huh? This is weird logic. The dam did fail. Downstream residents were at risk. That risk wasn’t alleviated because the dam didn’t fail in 1990.

Its collapse on June 13, 2010 — as a consequence of run-off from a heavier than normal winter snowpack, twice the normal rainfall and a partly blocked overflow culvert — released a torrent of water, mud and debris, seriously damaging houses and farmland.

The dam blowout washed away five homes and damaged 25 properties, 14 of them seriously. The province paid $460,000 to compensate farmers for crop losses in 2010, although some estimated it would take five years to restore their land. In addition, the province said $2.5 million from an $8.8 million federal-provincial flood mitigation fund would be earmarked for construction of a floodway at the Testalinden site.

“I believe that disclosure of the information the Ministry possessed from its various reports would have been clearly in the public interest,” Denham ruled. “The information about the risk of failure of the dam was information that the public did not know and that would have likely resulted in the local citizenry, at the very least, pressuring government to take remedial action.”

Denham was investigating the Testalinden incident as part of a broader submission from the Environmental Law Clinic at the University of Victoria. It had argued the province’s ministries and agencies routinely ignore their statutory duty to inform the public about health, environmental or safety risks.

Provincial authorities had identified the privately owned dam as a threat to downstream life and property as early as 1977 and advised the earthen structure’s reservoir be drained and the dam reconstructed or dismantled because of the downstream menace from a probable failure.

After one 1980 inspection, a professional engineer warned that “the dam in its present condition is a hazard, and endangers the settled areas downstream, along the Osoyoos-Oliver highway.”

But despite what Denham described as an “urgent and compelling need for public disclosure,” no warnings were issued.

The government’s reluctance to tell us about hazards to health, safety and the environment is, alas, the norm rather than the exception, the information commissioner’s report suggests.

Denham said that in a number of other cases cited by the university clinic — ranging from air and water quality issues in Prince George and Cowichan to the presence of black mould in a Simon Fraser University residential building — the government was technically not obligated to disclose risks.

But she said this was because the statute governing reports to the public fails to make sufficiently clear what comprises “an urgent and compelling need for disclosure,” leaving the law open to broad and inconsistent interpretation by the heads of public agencies.

As a result, her investigation found, few government bodies are disclosing health, safety, environmental and other risks of significant harm to the public as intended by provincial law.

Denham surveyed 11 such government ministries and agencies and found that most civil servants did not appear to understand their obligations on risks to the public.

She urges — it’s her major recommendation in the report — that the province amend the law regarding such disclosure to remove the requirement for “urgent and compelling need” and that officials should be educated about their responsibilities to inform the public.

Notifying citizens about potential risks to health, safety or the environment should be a routine and proactive procedure, the commissioner says.

She urges the province to amend the law “at the earliest opportunity” to require all government bodies holding information about possible public, health or environmental hazards and safety to engage in “proactive disclosure.”

Denham is right. This is a complete no-brainer. Citizens have a fundamental right to such information. Change the law. Make disclosure the ethical standard, not the exception. Post it publicly. Snap to it.

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Oliver resident Ian Gibson, a retired high school geology teacher, surveys the aftermath after the Testalinden dam broke in 2010, unleashing a torrent of debris that damaged homes and farmland. Spencer Whitney photo

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